Judgment rendered December 12, 2012.

Application for rehearing may be filed

within the delay allowed by Art. 922,

La. C.Cr.P.

No. 47,394-KA

COURT OF APPEALSECOND CIRCUIT

STATE OF LOUISIANA

* * * * *

STATE OF LOUISIANA Appellee

versus

JEREMY JERMAINE BROOKS Appellant

* * * * *

Appealed from the First Judicial District Court for the

Parish of Caddo, LouisianaTrial Court No. 279,753

Honorable Michael A. Pitman, Judge

* * * * *

LOUISIANA APPELLATE PROJECT Counsel forBy: Beth Smith Fontenot Appellant James E. Beal

CHARLES REX SCOTT, II Counsel forDistrict Attorney Appellee

DALE G. COX, JR.SUSAN MORELOCK OWENGEORGE WINSTON IIAssistant District Attorneys

* * * * *

Before STEWART, CARAWAY and DREW, JJ.

CARAWAY, J., concurs with written reasons.

DREW, J.:

Jeremy Jermaine Brooks was convicted of second degree murder, La.

R.S. 14:30.1. His motion for new trial was denied. In due course, he was

sentenced to life imprisonment at hard labor without benefits.

He appeals. We affirm the conviction but remand for resentencing.

FACTS

In April of 2009, when this defendant was 17 years of age, a senseless

gunfight occurred between rival gangs of young men at the Canaan Village

Apartments in Shreveport. Earlier that day, angry words had been

exchanged between the defendant and Terrance Holden. When Holden tried

to start a fistfight with him, the defendant showed him a gun and declined.

About 30 minutes later, the defendant, along with his brother, Josh

Brooks, and friend, Paul Jones (“P.J.”), were sitting outside one of the

apartment buildings, when Holden, accompanied by a crowd of people,

walked down the hill to start another fight with the defendant.

Josh retrieved an assault rifle from an apartment and fired into the

ground. The defendant took the rifle away from Josh and started firing at

Holden and his followers. P.J. began firing a handgun at the fleeing crowd.

Terrell Savore, a 15-year-old innocent bystander, tried to escape, but

suffered a fatal gunshot wound, falling in a parking lot at the top of the hill.

No bullets or fragments were found in the victim’s body, and no guns

were ever recovered. Shell casings, slugs, and bullet jackets were found in

various places at the apartment complex.

All witnesses agreed that Paul Jones, not the defendant, was the person firing the1

pistol from the bottom of the hill, toward the fleeing crowd at the top of the hill.

2

The defendant was originally charged with first degree murder, but

the indictment was reduced to second degree murder, the crime of

conviction.

On July 21, 2011, four days before trial, the state filed a supplemental

discovery response advising that Dr. Long Jin, the prosector, had rendered

an oral opinion that Terrell had probably died as a result of a gunshot from a

handgun, not an assault rifle. This supplemental discovery response was1

file stamped by the clerk’s office on that same date, but not scanned onto the

clerk’s website until July 26, 2011, the day after the jury was selected.

On Tuesday morning, July 26, prior to any testimony, the state

advised that the coroner, Dr. Thoma, and the prosector, Dr. Jin, would be on

vacation until the evening of Thursday, July 28. The state had intended to

call Dr. Jin, but instead of doing so, and not to delay the trial, the state

offered the autopsy report in lieu of testimony. Defense counsel objected.

The autopsy report was not admitted, but the death certificate was.

Defense counsel was not aware of Dr. Jin’s opinion until she received

a hard copy of the state’s notice, four days after the verdict.

TRIAL TESTIMONY

Don Ashley, Caddo District Attorney’s investigator, testified that:

• Shreveport gang activity included the Crips, who were located inCedar Grove, calling themselves the 19s; and the Bottoms Boys,whose territory was centered around the 1100 block of Fannin Street;

• he participated in the investigation of the homicide of Terrell Savore;

Shell casings found at the bottom of the hill were from an assault rifle and a2

9 mm pistol. Six .25-caliber shell casings were found at the top of the hill.

3

• Shreveport Police Department Detective Lowell Bowen asked him toquestion a witness, Jamil Johnson;

• he recovered surveillance videos from Canaan Village Apartments;

• 24 hours of footage was redacted to a 30-minute segment on a disk;

• he and others interviewed more than 30 witnesses to the shooting;

• these apartments contain territory disputed by the two gangs; and

• the police were able to recover the shell casings from the weaponsused in the shooting, although the actual weapons were never found.2

Jamil Johnson testified that:

• he was 12 years old on the date of the shooting, and at the time oftrial, he was 14;

• he lived at Canaan Village with his mother and siblings;

• Josh, P.J., and the defendant hung out around the “C” buildings;

• he was in building C2 when the shooting occurred;

• before the shootings, two groups of people were arguing at the scene;

• someone from the group opposing the defendant said, “Ain’t no gunsgot to be involved, why can’t we just fight and get this over with”;

• Josh then said, “If we lose somebody going to die”;

• Josh went into an apartment belonging to a person named Alexis;

• when Josh came out of the apartment, he had on a camouflage jacketand carried an assault rifle into which he inserted a clip;

• Josh and the defendant wrestled over the rifle, during which a shot ortwo discharged into the ground;

• the defendant ended up with the rifle;

• the defendant fired multiple shots toward the parking lot at the top ofthe hill;

Their names were Javis; Ladarius, a/k/a Peanut; Javarrea, a/k/a Nuk; and Tim. 3

4

• the crowd ran away from the defendant, who was shooting at them;

• Paul Jones shot a semiautomatic handgun many times toward theparking lot, which was on the top of the hill, near the “B” buildings;

• shots were also fired from the “B” units down toward the “C” units;

• after the shooting, he saw the defendant and Josh run upstairs;

• he saw Paul run downstairs into an apartment belonging to Alexis;

• the defendant soon left Mel’s apartment, without the rifle;

• Josh, Paul, and the defendant soon left the area on a trail that runsfrom Dowling to March, and he did not see them again that day;

• at the parking lot, he saw James Thomas, a/k/a Nunu, move Terrell away from gasoline flowing from a truck through the lot;

• Ashley came to interview him the day after the shooting;

• he told Ashley what he saw and watched the videos with him;

• he identified various people in the videos;

• the group on the hill included his cousins, and his cousins’ friend; 3

• the group down the hill included the defendant, P.J., Josh, andDemetrius, a/k/a Meechie, plus others he couldn’t remember; and

• Quarshay Robinson was the person shooting from the top of the hill.

Jamil Johnson’s sister, Precious Johnson, testified that:

• she was 15 years old at the time of the trial;

• she was standing in front of building B3 when the shooting occurred;

• the defendant had a “chopper,” which she described as a long gun;

• P.J. had a small gun; and

• the defendant and P.J. were shooting “everywhere.”

Sherrelle Savore, Terrell’s twin sister, testified that:

5

• earlier on April 13, 2009, she and Terrell and others went to therecreation center to fill out job applications;

• as they were leaving the recreation center, the defendant accused theircousin Ladarius of trying to fight with his little brother;

• later that day, their group was joined by Terrance Holden;

• their group later exchanged angry words with Josh, P.J., and thedefendant, at which point Josh said, “If I lose, I’m shooting”;

• P.J. had a handgun, and Josh said he was going to get a gun;

• Josh went and got a “chopper,” lost control of it, and the weapon shotinto the ground, at which point the defendant grabbed the gun;

• the defendant began shooting up the hill;

• she ran away, then her sister told her Terrell had been shot;

• she returned to the parking lot and saw her dying brother;

• she heard shots fired from the top and the bottom of the hill; and

• Quarshay Robinson began shooting down the hill after Josh and thedefendant repeatedly shot up the hill toward them.

Another one of the victim’s sisters, Kimberly Savore, testified that:

• that day she heard her boyfriend, Terrance Holden, arguing loudly;

• she heard the defendant say, “He ain’t fixing to take no ass whooping,that they fixing to go play pistol play”;

• When Josh got the rifle, the two brothers began fighting over it;

• the gun discharged, then the defendant wrested control from Josh;

• the defendant started shooting at her and her group, so they ran away;

• she saw that P.J. had a handgun; and

• she later returned and saw her injured brother in the parking lot.

Terrance Holden testified that:

• he was serving seven years for home invasion at the time of trial;

6

• he was at the apartments that day visiting his girlfriend, KimberlySavore;

• earlier that day, he had an argument with the defendant;

• the defendant wouldn’t fight him but did show a pistol, and then left;

• he and the defendant had another confrontation later that day at theCanaan Village Apartments, where he saw P.J. with an assault rifle;

• the first shot was by P.J., and it went into the ground;

• someone unknown to him fired back toward the bottom of the hill;

• there was then gunfire from up and down the hill; and

• Terrell was shot while trying to escape.

Javarrea Cockerm, a/k/a Nuk, testified that:

• he had previously lived at Canaan Village Apartments but was notliving there on the day of the shooting, April 13, 2009;

• Josh had the assault rifle first, then the defendant took it from him;

• P.J. had a handgun;

• the defendant and P.J. were firing up the hill;

• a large group of people, including himself and Terrell, ran up the hillto a parking lot, to get away from the shooting;

• he saw Terrell on the ground in the parking lot;

• Robinson returned fire with a .25-caliber handgun from the parkinglot;

• Robinson fired only after the assault rifle fired;

• he and his friends were members of the Bottoms Boys; and

• Josh, P. J., and the defendant were Cooper Road gang members.

Ladarius Anderson, a/k/a Peanut, testified that:

• he and Terrell were cousins;

• he saw Josh with the rifle, then saw the defendant get it; and

7

• P.J. and the defendant began firing up the hill.

Alexis Barber testified that:

• she lived in Canaan Village in a “B” unit at the top of the hill;

• she saw the argument going on down the hill;

• she could not hear what was being said, but they were yelling;

• Josh ran to get a rifle, then shots began being fired up and down thehill;

• Terrell was running away when the bullet struck him; and

• she corroborated testimony from other witnesses about the firearmsbeing utilized and in what directions the participants were shooting.

Andrea Mitchell testified that:

• she lived in one of the “C” buildings at the time of the shooting;

• after the shooting stopped, she heard a knock at her door;

• Meechie and the defendant were standing there, at which timeMeechie entered and hid a big gun in her apartment;

• she knew Meechie because he was a friend of her boyfriend, Mel; and

• the defendant stood outside as Meechie hid the rifle.

Sedrikea Ragster, Nuk’s sister, testified that:

• she went to the recreation center that day, along with Nuk, her cousinSherrelle (the victim’s twin sister), and Peanut (Ladarius Anderson);

• they all went to apply for summer jobs;

• she saw Josh having words with Peanut;

• they left and went to her aunt’s house, where they again ran into Josh;

• there was supposed to be a fight there, but it never happened;

• later that day, she saw the two groups arguing down the hill;

• she heard Josh say that if he lost, he would shoot;

8

• she saw Josh get a rifle, then saw the defendant take it from Josh;

• the defendant and P.J. started firing up the hill; and

• many little children were there, running everywhere.

James Thomas testified that:

• he was living in a “B” unit at Canaan Village Apartments on April 13,2009;

• he confirmed the testimony of the other witnesses with regard to theshooting and who was shooting which weapon;

• Terrell was with him at the bottom of the hill when the shootingstarted, and they both ran up the hill at the same time;

• when he reached the office of the apartment complex, he noticedTerrell was no longer with him, so he turned around to look for himand saw him lying in the parking lot next to a white truck; and

• Terrell was bleeding and asking for help.

Skylar VanZandt of the Shreveport Police Department testified that:

• he got to the crime scene about 6:00 p.m. on the date of the shooting;

• there were two crime scenes, one in the parking lot at the top of thehill, and another at the bottom of the hill near building C2;

• he found 12 spent rifle casings and 21 9 mm pistol casings at C2;

• the police found six .25-caliber casings in the parking lot on top ofthe hill,

• they later found six more spent pistol casings between C1 and C2;

• another rifle casing was found off the sidewalk in front of C2;

• he made a video of the scene with placards placed at the variouslocations where evidence was found; and

• the trial diagrams accurately reflected the location of the evidence.

Richard Beighley, firearms section supervisor with the North

Louisiana Crime Lab, was qualified as an expert and identified the three

Beighley was able to microscopically compare the marks left by the discharging4

of those weapons and determine that there were a total of three guns involved: a.30-caliber rifle, a 9mm handgun, and a .25-caliber automatic Colt pistol.

No other witness testified that the first shots came from the top of the hill.5

9

types of firearms involved in this case, even though he never received the

firearms. 4

The defense’s only witness was Lewis Taylor, who lived in building

C2 at the bottom of the hill in April of 2009. He testified that he knew who

P.J. was, but he did not know the defendant or Josh. He did not see the

shooting, as he was in the breezeway of his apartment smoking marijuana

when he heard the initial shots, which came from the top of the hill. 5

VERDICT AND POST-VERDICT PROCEEDINGS

The jury returned a 10-2 verdict of guilty of second degree murder.

Motions for new trial and for post-verdict judgment of acquittal were

denied.

The motion for new trial was based on newly discovered material

evidence which, notwithstanding the exercise of due diligence, was not

discovered prior to trial, and that the verdict would have been different had

the information been known during trial.

The post-verdict motions were denied, and the defendant timely

appealed, urging three issues: (1) insufficiency of the evidence; (2) the

evidence supported a manslaughter verdict, instead of second degree

murder; and (3) the trial court’s error in not granting a new trial.

DISCUSSION

Sufficiency of the evidence

The defendant argues that:

10

• the defendant did not want to fight with Holden, the person who wasprovoking the fight;

• when he showed the handgun, he did not point it at Terrance, and noevidence showed the defendant using a handgun;

• in fact, he fought with his brother over the assault rifle;

• the testimony showed that he did not fire the rifle until he was firedupon;

• when the shots were fired from up the hill, he reasonably believedthat he was in imminent danger of losing his life or receiving greatbodily harm; and

• the state did not prove that he was not acting in self-defense.

The state responds that:

• the defendant was tried for second degree murder, requiring proofthat he had the specific intent to kill or inflict great bodily harm;

• the state has the burden of proof that he did not act in self-defense;

• self-defense is a fact question for the jury;

• the evidence was undisputed that Holden wanted to fistfight with thedefendant, but was not armed;

• P.J. had a handgun, and Josh had ready access to an AK-47;

• when Josh fired the weapon into the ground, the defendant grabbed itas all the unarmed people ran up the hill away from the gunfire;

• there was no reason for the defendant to fire upon those who fled;

• the hostilities could have ended there;

• Josh, P.J., and the defendant created the excitement, confusion, andfear when they introduced an assault rifle into the equation;

• a single gunman fired shots down the hill in the defendant’s direction,but not until Josh had fired the assault rifle;

• though there was conflicting evidence, a review of the evidence in thelight most favorable to the state must conclude that the .25-caliberhandgun was fired after the defendant began firing;

La. R.S. 14:20(A)(1). Justifiable homicide. 6

A homicide is justifiable under La. R.S. 14:20 when committed in self-defense byone who reasonably believes that he is in imminent danger of losing life or receivinggreat bodily harm and that the killing is necessary to save himself from that danger.

La. R.S. 14:21. Aggressor. A person who is the aggressor or who brings on a difficulty cannot claim the right

of self-defense unless he withdraws from the conflict in good faith and in such a mannerthat his adversary knows or should know that he desires to withdraw and discontinue theconflict.

When self-defense is raised as an issue by a defendant, the state has the burden ofproving, beyond a reasonable doubt, that the homicide was not perpetrated inself-defense. State v. Garner, 39,731 (La. App. 2d Cir. 9/8/05), 913 So. 2d 874, writdenied, 2005-2567 (La. 5/26/06), 930 So. 2d 19. Factors to consider in determiningwhether a defendant had a reasonable belief that the killing was necessary include theexcitement and confusion of the situation, the possibility of using force or violence shortof killing, and the defendant’s knowledge of the assailant’s bad character. State v. Spivey,38,243 (La. App. 2d Cir. 5/12/04), 874 So. 2d 352. Although there is no unqualified dutyto retreat, the possibility of escape is a factor to consider in determining whether adefendant had a reasonable belief that the use of deadly force was necessary to avoid thedanger. State v. Brown, 414 So. 2d 726 (La. 1982); State v. Spivey, supra.

In 2009, La. R.S. 14:30.1, Second degree murder, stated, in pertinent part:7

A. Second degree murder is the killing of a human being:(1) When the offender has a specific intent to kill or to inflict great bodily

harm. The standard for review in cases that raise sufficiency of the evidence is found in

Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). The Jacksonstandard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide theappellate court with a vehicle to substitute its own appreciation of the evidence for that ofthe fact finder. State v. Pigford, 2005-0477 (La. 2/22/06), 922 So. 2d 517; State v. Dotie,43,819 (La. App. 2d Cir. 1/14/09), 1 So. 3d 833, writ denied, 2009-0310 (La. 11/6/09), 21So. 3d 297. The appellate court does not assess the credibility of witnesses or reweighevidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So. 2d 442. A reviewing courtaccords great deference to a jury’s decision to accept or reject the testimony of a witnessin whole or in part. State v. Eason, 43,788 (La. App. 2d Cir. 2/25/09), 3 So. 3d 685, writdenied, 2009-0725 (La. 12/11/09), 23 So. 3d 913; State v. Hill, 42,025 (La. App. 2d Cir.5/9/07), 956 So. 2d 758, writ denied, 2007-1209 (La. 12/14/07), 970 So. 2d 529. The

11

• the trial court properly charged the jury as to justifiable homicide,self-defense, and the aggressor doctrine;6

• the defendant started the argument with Holden earlier in the day atanother location, for no apparent reason;

• the defendant could have walked away when Holden came walkingdown the hill, but he chose to escalate the conflict; and

• the jury reasonably rejected that the shooting was in self-defense.

Our laws on the elements of second degree murder and appellate

review of sufficiency considerations are well settled.7

trier of fact is charged to make a credibility determination and may, within the bounds ofrationality, accept or reject the testimony of any witness; the reviewing court mayimpinge on that discretion only to the extent necessary to guarantee the fundamental dueprocess of law. State v. Casey, 1999-0023 (La. 1/26/00), 775 So. 2d 1022, cert. denied,531 U.S. 840, 121 S. Ct. 104, 148 L. Ed. 2d 62 (2000).

An appellate court reviewing the sufficiency of the evidence must resolve anyconflict in the direct evidence by viewing that evidence in the light most favorable to theprosecution. When the direct evidence is thus viewed, the facts established by the directevidence and inferred from the circumstantial evidence must be sufficient for a rationaljuror to conclude beyond a reasonable doubt that defendant was guilty of every essentialelement of the crime. State v. Jacobs, 504 So. 2d 817 (La. 1987); State v. Adkins, 39,724(La. App. 2d Cir. 6/29/05), 907 So. 2d 232, writ denied, 2006-2514 (La. 5/4/07), 956 So.2d 607.

The original bill of indictment was filed exactly two years before the 8

commencement of trial for the amended charge of second degree murder.

The autopsy report revealed that the pathologist did not find any bullet or bullet9

fragments in the body of the victim. The small entry wound is clearly visible.

The report reflected that 40 shell casings were delivered for analysis: 27 of the10

shells were 9 mm and 13 were from an assault rifle. No guns were submitted forcomparison, and the response indicated that the police never found any weapons.

12

The evidence presented at trial overwhelmingly supports the state’s

case, including the rejection of the defendant’s claims of self-defense. All

elements of second degree murder were proven beyond a reasonable doubt.

Evidence supports a finding of manslaughter

We pretermit discussion of this issue, because overwhelming

evidence supports the conviction for second degree murder, mooting this

assignment.

Denial of motion for new trial based on new evidence

A chronology of events here is crucial:

July 25, 2009 – First degree murder indictment is filed; 8

September 30, 2009 – Autopsy report and photos are provided to thedefense;9

January 25, 2010 – The state produced the crime lab report;10

We could not find in the record the actual date on which the prosecutor11

conducted his pretrial interview with Dr. Jin, the point at which the state learned ofprosector’s opinion that death was probably caused by a pistol shot;

13

July 21, 2011 – The state sends notice, file stamped by the clerk onthis date, advising of the prosector’s opinion as to probable cause of death;11

July 21, 22 and 23, 2011 – Defense counsel checks the clerk’swebsite for filings;

July 25, 2011 – Defense counsel again checks the clerk’s website onthe morning of the first day of trial;

July 25, 2011 – Bill amended to second degree murder and jury isselected;

July 26, 2011 – Clerk scans discovery onto its website;

July 26, 2011 – State announces the two physicians will not beavailable;

July 28, 2011 – Jury finds defendant guilty as charged (10-2); and

August 1, 2011 – Defense counsel receives a hard copy of the July21, 2011, filing.

Defendant argues that the jury should have been advised of Dr. Jin’s

opinion, and this knowledge could have changed the outcome of the case, as

it would have been a more difficult decision for the jury to convict the

defendant as a principal to the killing.

La. C. Cr. P. art. 851(3) requires that the trial court must grant a new

trial when new and material evidence is discovered after trial if the evidence

was not discoverable before or during trial, and the evidence would

probably have changed the verdict or judgment of guilty.

Defendant argues that his right to a trial by jury requires that a jury,

not the judge, decide whether he acted as a principal in this case. He claims

14

the evidence proves that he was reacting to the circumstances he found

himself in rather than aiding and abetting Paul Jones in killing Terrell.

The state notes that the public defender’s secretary, who did not

testify, was not sure when the supplemental discovery response was

received, nor when it was placed in defense counsel’s box.

The trial court ruled that who actually fired the fatal shot was

irrelevant, because there was ample evidence to convict the defendant as a

principal. The state also points out that the trial court had instructed the

jury on the law of principals, including an instruction that the accused need

not have fired the fatal shot to be convicted, but can be guilty as a principal.

The state further takes the position that:

• the jury was told that “we can’t prove which bullet killed him”;

• there was much evidence that the defendant was guilty as a principal;

• transferred intent imposes guilt on both P.J. and the defendant;

• even if the defendant did not intend to kill Terrell, his conduct aidedand abetted Jones in doing so by laying down cover fire;

• defendant never argued that Jones was the actual killer;

• defendant knew no bullet had been removed from the victim’s body,no weapons had been found, and that P. J. had fired more than twicethe number of shots in the victim’s direction than had the defendant;

• the defendant also had access to autopsy photos that showed a smallentry wound inconsistent with assault rifle ammunition;

• Defendant had as much access to Dr. Jin as did the state;

• defendant’s strategy was that of self-defense and manslaughter; and

• the evidence, even if considered to be newly discovered, would nothave changed the verdict.

15

La. C. Cr. P. art. 851 states in pertinent part as follows:

The motion for new trial is based on the supposition thatinjustice has been done the defendant, and, unless such isshown to have been the case the motion shall be denied, nomatter upon what allegations it is grounded.

The court, on motion of the defendant, shall grant a new trialwhenever:

. . .(3) New and material evidence that,notwithstanding the exercise of reasonablediligence by the defendant, was not discoveredbefore or during the trial, is available, and if theevidence had been introduced at the trial it wouldprobably have changed the verdict or judgment ofguilty.

In State v. Coleman, 2005-1617 (La. 6/29/07), 959 So. 2d 465, the

supreme court stated a defendant seeking a new trial based on newly

discovered evidence must establish four elements: (1) that new evidence

was discovered after trial; (2) the new evidence is material; (3) the failure to

discover the evidence was not due to a lack of diligence on the part of the

defense; and (4) had the evidence been introduced, the verdict or judgment

of guilty probably would have been changed. When a defendant alleges

newly discovered evidence after trial, the ruling on a new trial motion rests

within the sound discretion of the trial judge.

Suppression by the prosecution of evidence favorable to an accused

upon his request for such evidence violates due process where the evidence

is material either to guilt or to punishment, irrespective of the good faith or

bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 83 S. Ct.

1194, 10 L. Ed. 2d 215 (1963); State v. Barker, 628 So. 2d 168 (La. App. 2d

Cir. 1993), writ denied, 635 So. 2d 236 (La. 1994).

There are actually three components of a true Brady claim: (1) The evidence at12

issue must be favorable to the accused, either because it is exculpatory, or because it isimpeaching; (2) that evidence must have been suppressed by the state, either wilfully orinadvertently; and, (3) prejudice must have ensued. State v. Garrick, 2003-0137 (La.4/14/04), 870 So. 2d 990. A discovery violation involving the state’s failure to discloseexculpatory evidence does not require reversal as a matter of the due process clauseunless the nondisclosure was so serious that there is a reasonable probability that thesuppressed evidence would have produced a different result. Id.

The disputed document was scanned and available by the second day of trial. 13

16

The term “Brady violation” is sometimes used to refer to any breach

of the broad obligation to disclose exculpatory evidence. 12

In State v. Black, 34,688 (La. App. 2d Cir. 5/9/01), 786 So. 2d 289,

writ denied, 2001-1781 (La. 5/10/02), 815 So. 2d 831, the court stated that

under Brady, the state must disclose all evidence material to guilt or

punishment and favorable to the defendant. The state’s duty of disclosure

under Brady applies irrespective of the nature of the discovery request and

even when a request has not been made. Evidence is material for Brady

purposes if there is a reasonable probability, sufficient to undermine

confidence in the outcome, that disclosure of the evidence would have

produced a different result. The question to be answered is whether the

undisclosed evidence would have created a reasonable doubt that would not

otherwise exist, with reasonable doubt being determined in the context of

the entire record. Failure to comply with discovery merits mistrial only

when the state’s conduct substantially affects a defendant’s right to prepare

a defense, or when it rises to the level of a legal defect. The trial court may

offset the effect of late disclosure of information to the defendant by calling

a recess or granting a continuance and the propriety of the remedy for late13

disclosure of information depends on the circumstances of each case.

See Miller v. Alabama, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012); Graham v.14

Florida, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); State v. Simmons, 2011-1810 (La.10/12/12), 99 So. 3d 28; and State v. Graham, 2011-2260 (La. 10/12/12) 99 So. 3d 28.

17

We do not find error in the trial court’s denial of defendant’s motion

for new trial. All applicable law was explained to the jury, and the evidence

was abundant and convincing that the defendant took part in the shooting

which resulted in the death. Whether Dr. Jin’s testimony would have had an

impact on the jury is highly questionable, and certainly not probable.

In a perfect world, the prosecutor would have immediately advised

opposing counsel as to Dr. Jin’s opinion, either orally, by fax transmission,

by text, by email, by a runner, or in open court. Also, in a perfect world,

public defenders would have a file-stamp process to indicate the date and

time of the receipt of all documents.

The world is far from perfect, however, and unhurried hindsight

provides amazing clarity, as contrasted with the pressure and time

constraints of lawyers making final preparations for a jury trial. This factual

situation is not ideal, but falls far short of reversible error.

Dr. Jin was available for interviews for months before trial. His

opinion as to the probable origin of the fatal bullet was there for the asking.

In any event, we agree with the trial court’s decision that timely knowledge

of this information would not have altered the verdict.

Because of the defendant’s age at the time of the murder, we remand

for resentencing, in light of recent jurisprudence forbidding mandatory life

sentences, with no possibility of parole, for offenders under the age of 18 at

the time of the crime.14

18

DECREE

The conviction is AFFIRMED. The sentence is VACATED, and the

case is REMANDED for resentencing.

1

CARAWAY, J., concurring.

I concur in the majority ruling. The issue of the defense’s lack of

knowledge of Dr. Jin’s opinion about the murder weapon is problematic. A

closer examination of the two gunmen’s alleged roles as principals in

concert nevertheless allows me to affirm the conviction.

The law of principals, as set forth in La. R.S. 14:24 states that:

All persons concerning in the commission of a crime, whether presentor absent, and wither they directly commit the act constituting theoffense, aid and abet in its commission, or directly or indirectlycounsel or procure another to commit the crime, are principals.

The defendant’s mere presence at the scene is not enough to “concern” an

individual in the crime. State v. Hampton, 98-0331 (La. 4/23/99), 750 So.

2d 867, cert denied, 528 U.S. 1007, 120 S. Ct. 504, 145 L. Ed. 2d 390

(1999); State v. Schwander, 345 So. 2d 1173 (La. 1977). Nor can a jury’s

inference that an accused aided and abetted in a crime be founded upon

mere speculation based upon guilt by association. State v. Schwander,

supra. Only those persons who knowingly participate in the planning or

execution of the crime are principals. State v. Pierre, 631 So. 2d 427 (La.

1994). A principal may be connected only to those crimes for which he had

the requisite mental intent. Acting in concert, each person becomes

responsible not only for his own acts, but for the acts of the other. State v.

Anderson, 97-1301 (La. 2/6/98), 707 So. 2d 1223. Under the law of

principals, a person may be convicted of an offense even if he has not

personally fired the fatal shot. State v. Hampton, supra.

In this case, the testimony established that Brooks and P.J. were

members of the same street gang. P.J. was known to have carried an assault

2

rifle on occasion. Eyewitness testimony established that on the day of the

crime, prior to any shooting, the defendant, his brother and P.J. argued with

the opposing group of individuals. An eyewitness indicated that it was after

this first argument that Brooks, his brother and P.J. indicated that they

would not tolerate getting beat up and that they were “fixing to go play

pistol play.” Other eyewitnesses claim these statements were made after a

second argument. Nevertheless, the opposing group came down the hill

intending to fight the defendant, his brother and P.J. Further argument

ensued between the groups which an eyewitness described as including

“arguing, fighting, passing words.” Thereafter according to one eyewitness,

Brooks obtained an assault rifle from his brother and began shooting

directly at the crowd. P.J. followed suit with a handgun. One witness

indicated that the two men ran toward the crowd as they shot. It was during

these events that the victim was killed.

These facts exclude any reasonable possibility that this riotous

confrontation involved two shooters acting independently and not in

concert. The defendant’s and P.J.’s actions were sufficiently proven to be in

concert, each procuring and aiding the other in their collective assault. That

concerted effort allowed the jury to find them both principals in the

commission of the crime. Such finding, which is not based upon any

determination of which man’s gun inflicted the fatal harm, allows the

conviction’s affirmance.